The Commandment to Establish Courts Based on Torah Law
Last week, I dealt with the Torah commandment to conduct all legal matters before judges who mediate according to the Torah, as it is written (Exodus 21:1): “These are the laws that you must set before [the Israelites].” Regretfully, however, after so many long years of exile and aspiring to return to our holy land, the Jewish identity of many members of our nation was weakened, and the State of Israel established for itself a legal system based on foreign beliefs, alienating itself from Torah tradition. The results were not long in coming: the Supreme Court became the institution which causes the most damage to the Jewish identity of the State of Israel and its Zionistic challenges. In a similar manner, Chief Rabbi Isaac Herzog, of blessed
memory, wrote: “Now, when the Jewish nation dwells in its homeland and regretfully judges according to foreign laws, it is a thousand times worse than an individual or a Jewish community who brings their cases before non-Jewish courts…who knows what the results will be from such a shameful and humiliating situation” (‘HaTorah v’Ha’Medina’ vol.7).
The Prohibition of Turning to a Non-Religious Court
As we have learned, it is forbidden to make a claim against someone in a non-religious court, or as Rabbi Tzvi Pesach Frank, of blessed memory, the successor in the Rabbinate of our teacher, Rabbi Kook, of blessed memory, wrote: “It is simple and clear that these judges [and courts] are “non-Jewish courts” in all respects, and anyone who goes to them raises his hand against the Torah of Moshe, and anyone who strengthens them will have a bitter end” (cited in the Responsa “Tzitz Eliezer” 12:82).
Likewise, regarding divorces, it is a Torah obligation to clarify all the laws before a ‘Beit Din Torani’ (Jewish law court), and one who goes to a non-religious court raises his hand against the Torah of Moshe.
When One Side Refuses
Occasionally, one side would prefer to clarify a disagreement in a religious court, however, the other side is unwilling. Since the law has given the authority to the non-religious courts – the claimant cannot force the respondent to contend in a religious court. In such a circumstance, the question arises: is one permitted to file a claim in a non-religious court in order to recover his money?
Some Torah authorities hold that even when one side refuses to bring the case before a religious court, the prohibition of going to a non-religious court remains in effect until the claimant comes before a religious ‘Beit Din’, or Jewish law court, and receives permission to turn to the non- religious courts to recover his money. Others believe that it is not necessary to make such a request from an established ‘Beit Din’, for since the respondent refuses to come before a Torah court – it is permissible to sue him in a non-religious court. However, one should first ask a competent rabbi if his claim is correct according to Torah law, for if not, a situation is liable to occur in which he exacts money from the person he sued in contradiction to Torah law. One who wishes to act leniently according to this opinion is permitted.
Can a Religious Jew be a Judge in a Secular Court?
This question has not been sufficiently dealt with. Some rabbis hold that it is forbidden for a Jew to be appointed judge in a non- religious court. I heard that Rabbi Shlomo Min HaHar, of blessed memory, the rabbi of the neighborhood Bayit Ve’Gan in Jerusalem, exited the synagogue in protest when a religious judge serving in the secular courts was called to the Torah for the reading of “V’eleh Ha’Mishpatim” (“These are the laws”), for how could one read about the prohibition of going to a non-religious court when he himself is a partner in the crime? In a similar manner, a God-fearing judge once told me that he refrains from signing as a witness on a ‘ketuba‘, taking into consideration the opinion of rabbis who hold that, serving as a judge in a non-religious court, he is invalid to be a witness.
On the other hand, there are rabbis who hold that when the goal is to improve the situation, it is permitted to be appointed a judge, since it is not the judge who is guilty of setting-up the foreign judicial system.
In my humble opinion, everything depends on the judge’s outlook. If he objects to the situation, and does not hide this fact, attempting to correct it wherever possible, then his appointment is valuable. Of course, he cannot breach his promise to rule according to the non-religious law, but in numerous cases the law is given to various interpretations. Just as non-religious judges stretch their interpretations to the extreme, non-religious side, so too, he is allowed, and even obligated, to stretch the interpretation of the law as far as possible to the direction of Torah law. If, however, he tries to fit into the system, attempting to be loyal to its character, even if occasionally he adorns his decisions with verses from the Torah and words of the Sages – he is a partner to ‘chilul Hashem‘ (profaning God’s Name), and in a certain respect, his sin is even greater, for having been aware of the severity of the prohibition, he nevertheless chose to participate in it.
At this juncture it would be proper to praise those judges who sanctify God’s Name, and admonish those who profane it; however, I am not appropriately familiar with the character of the various religious judges’ decisions, and therefore I will abstain from writing my thoughts, which are not fully confirmed.
Rabbi Mordechai Eliyahu’s Opinion
In a similar way, our teacher and rabbi, the Rishon L’Tziyion, Rabbi Mordechai Eliyahu, of blessed memory, wrote: “In the given situation, there is importance and benefit for a religious [Jew to be a] judge, similar to [the need for] lawyers and religious media reporters who will raise the voice of the Torah in all sectors of life, in particular, that the media should hear their voice, explaining and clarifying the ways of the Torah and its laws” (T’chumim, pg. 244).
An Argument and an Answer
Q: Regarding a portion of the long list of decisions which you mentioned in last week’s article, in which the Supreme Court decided in contradiction to Jewish and national ideals, even a Torah court would have been forced to decide in contradiction to our security needs, due to the fact that Israel is also dependent on world opinion, and therefore, obligated to maintain its accepted rules.
A: The judges weren’t chosen to worry about our international relations. They are meant to make decisions according to the law and justice only. The members of Knesset and the government were chosen to deal with the security of the State of Israel, and if they think we need to pass ordinances or laws – that’s their job.
In actuality, the majority of the court’s decisions which I mentioned last week were made without legislation. In many cases, it was even clear that there was no chance of passing such laws in the Knesset. Nevertheless, the courts have placed themselves above the legislators and the nation, and have decided these issues according to the non-religious, Western outlook which presently presides.
The responsibility for this situation lies first and foremost with the members of Knesset, and their guilt begins with their not working to return Jewish law to its proper status.
It must be mentioned that there are other countries that are in a state of war, for example America and England. While fighting, they kill many more civilians than we do. Interestingly, we haven’t heard much about their courts troubling their armies.
Other interesting, informative, and thought-provoking articles by Rabbi Melamed can be found at: http://en.yhb.org.il/